Posted
by
Unknown Lamer
on Tuesday May 15, 2012 @08:04AM
from the publishers-declare-war-against-fair-use dept.

McGruber writes with news of a ruling in a copyright case brought against Georgia State by several publishers over the university's electronic reserve system: "The Atlanta Journal Constitution is reporting that a federal judge has ruled in favor of Georgia State University on 69 of 74 copyright claims filed by Cambridge University Press, Oxford University Press, and SAGE Publications. In a 350-page ruling, Senior U.S. District Judge Orinda Evans found that 'fair use protected a Georgia State University professor's decision to allow students to access an excerpt online through the university's Electronic Reserves System.' While the 69 of the 74 claims were rejected, the judge also found that five violations did occur 'when the publisher lost money because a professor had provided free electronic access to selected chapters in textbooks.' SAGE Publications prevailed on four of these five claims, while Oxford University Press won the fifth claim. Cambridge University Press lost all its claims."
From Inside Higher Ed: "And the judge also rejected the publishers' ideas about how to regulate e-reserves — ideas that many academic librarians said would be unworkable. At the same time, however, the judge imposed a strict limit of 10 percent on the volume of a book that may be covered by fair use (a proportion that would cover much, but by no means all, of what was in e-reserves at Georgia State, and probably at many other colleges). And the judge ruled that publishers may have more claims against college and university e-reserves if the publishers offer convenient, reasonably priced systems for getting permission (at a price) to use book excerpts online. The lack of such systems today favored Georgia State, but librarians who were anxiously going through the decision were speculating that some publishers might be prompted now to create such systems, and to charge as much as the courts would permit."

Note that the peer review process does not need to be facilitated by academic publishing companies. Universities could organize peer review, and universities could publish journals online at no cost. Universities are also in a position to give researchers incentives to participate -- tenure review, bonus pay, etc. The only reason publishing companies came about in the first place was to meet the needs of scientists to have their work distributed to other scientists; now that we have the Internet, we really do not need publishing companies at all.

This is an issue that scientists should care about. In theory, scientists do their work to advance the state of human knowledge; this necessarily means making that new knowledge available to others. Right now, most scientific papers are unavailable to anyone who is not a scientist, with publishers demanding absurd fees for access.

Note that the peer review process does not need to be facilitated by academic publishing companies. Universities could organize peer review, and universities could publish journals online at no cost.

Exactly. And this is how research in Brazil is published. Universities mantain open access e-journals with peer reviews. I can't believe that more developed countries are still bullied by academic publishing companies.

And it would be ridiculously easy and cheap to set up and kept running considering all the resources already available to universities. If you start deducting costs for even a single journal package over a year, you might even start saving money. All it would take is one prestigious university to assign a few grad students and endorse it. You could even limit access only to those universities that would submit papers (well pdfs) themselves. Bonus points if you require all your staff to submit a copy of any

It's happening slowly, but on a per-field basis. JOT is a good example of this. It took over when JOOP was killed by the publisher, and began with largely the same editorial team and set of reviewers. The only difference in the transition was that all papers went online and there were no printed proceedings. I've just been working with another conference that is now going to be publishing its own proceedings rather than going through an existing publisher, using a print-on-demand service for the hard co

Why aren't the scientists copyrighting or putting their work into the public domain prior to submission?

Some do, especially in computer science; see, for example, the cryptology eprint archive. Consider, however, the guidelines for publishing a paper in the Journal of Algebra:

Submission of an article implies that the work described has not been published previously (except in the form of an abstract or as part of a published lecture or academic thesis), that it is not under consideration for publication elsewhere, that its publication is approved by all authors and tacitly or explicitly by the responsible authorities where the work was carried out, and that, if accepted, it will not be published elsewhere including electronically in the same form, in English or in any other language, without the written consent of the copyright-holder.

In case you were wondering who the copyright holder is:

Upon acceptance of an article, authors will be asked to complete a 'Journal Publishing Agreement' (for more information on this and copyright see http://www.elsevier.com/copyright [elsevier.com]). Acceptance of the agreement will ensure the widest possible dissemination of information. An e-mail will be sent to the corresponding author confirming receipt of the manuscript together with a 'Journal Publishing Agreement' form or a link to the online version of this agreement.
Subscribers may reproduce tables of contents or prepare lists of articles including abstracts for internal circulation within their institutions. Permission of the Publisher is required for resale or distribution outside the institution and for all other derivative works, including compilations and translations (please consult http://www.elsevier.com/permissions [elsevier.com]). If excerpts from other copyrighted works are included, the author(s) must obtain written permission from the copyright owners and credit the source(s) in the article. Elsevier has preprinted forms for use by authors in these cases: please consult http://www.elsevier.com/permissions [elsevier.com].

Basically, if you publish an article in this journal, you must give them the copyright, and your submission will be rejected if you published the article previously, including publishing in the public domain. This is not necessarily a bad thing; an unscrupulous scientist might try to publish the same paper in many journals, and make it appear that he has done more work than he actually has. However, in the current system of copyrights and academic publishers, this has the side effect of ensuring that a scientist cannot make his journal articles available to the public at no cost.

In the particle physics community it is standard practice to upload preprints to arXiv [arxiv.org]. In the legalese [cornell.edu] section they state that most publishers are tolerant of preprints, but many do not want the final version of the paper to be uploaded to the arXiv. In any case, most people do upload the final version anyway. I have never heard of them loosing their copyright goons on anyone in the community for this; I guess they know that we are generally intolerant when it comes to such douchebaggery, so they would be shooting themselves in the foot if they tried to come after us. Personally I fully support any initiative to break the hold that these outdated cartels have over the publishing of science.

Science publishers sticking it to Universities, the institutions most capable of creating global multi-lingual free open reports and text books, 'erm' yeah, that's going to work out well for the publishers, 'Douh'.

Why do we need academic publishing companies at all? Everything they do can be done by universities working together over the Internet, and the lower costs could help reduce tuition rates.

Assuming, of course, that the goal universities and the professors they employ is to educate people. There are a scary number of professors who write textbooks in order to make money, rather than to communicate their knowledge to students.

Inertia, everyone knows the system is stupid but it's difficult to move away from it alone. Promotions are based on the number (not the quality not the number of pages) of peer reviewed papers in so called prestigious journals. This is moronic because every time a scientist publishes, he signs away his copyright thus harming the library of the institution he is affiliated with. However, many scientists are trying to change the system so the public can access their research.

Then why in the name of the noodle don't they change their scientists contracts? "Any paper created while receiving funds from the university must be made available to members of the university free of charge." The publishers didn't fund the research, they didn't pay the staff so why should they, and not the university profit from it?

In most cases the university doesn't fund the research either, and although they do provide infrastructure, that too is funded by overhead charges on researchers' grants.

Which is how we end up paying so many times over for research: with our tax dollars, with our time and effort, with our time and effort spent on peer review, with our indirects (overhead charges, typically 40-60%) which fund library subscriptions and again when we buy papers the library can't provide.

Absolutely, I don't even mind letting the professors make money on the book, or the departments, colleges and universities. The mark up the publishers make on each and every books is so So SO great that even with a little money going to the academic source, would still mean great savings to students.

I realized after I submitted that post that I sound like I am saying that professors should be working for free; what I was actually criticizing is the practice of professors requiring their students to buy copies of their book, to rake in additional royalties. The way I see it, universities should pay professors to write books -- perhaps considering it during tenure review, or giving professors a year away from teaching -- and those books should then be made available online at no cost to students.

Why do we need academic publishing companies at all? Everything they do can be done by universities working together over the Internet, and the lower costs could help reduce tuition rates.

Academic publishers do two things: for research journals they provide a peer-review system which, when it is working properly, ensures that only peer-reviewed content is published in the journal so that we do not waste our time reading papers with little to no scientific value. Second, for text books, they provide editing and publishing services which ensure that text books have quality content and are readable (to some extent - it would be worse without editors believe me!).

Here is a pretty good analysis [duke.edu] from one of Duke University's legal advisors (posting in his role as blogger rather than formal legal advice, of course). Generally a win for libraries, but there are some oddities. For example, the specific rules on proportionality that the judge set forth are a bit odd and potentially gameable: 10% by page count of a work fewer than 10 chapters, or up to one full chapter for a work with 10 or more chapters. Does this still hold if presses start deliberately putting out books with a ton of really short chapters? Are there cases where >10% by page count should still be fair use? Copyright law doesn't actually set a strict percentage limit, though there might be some advantages in clarity if it did.

Another interesting aspect, which I got from this also-interesting analysis [laboratorium.net] of the decision, is that many of the claims never even got to a legal analysis stage, because the publishers couldn't produce sufficient evidence of having a registered copyright: either they couldn't find a signed copyright transfer from the author showing that the publisher actually had copyright properly assigned to them, or they couldn't produce evidence that they had registered the copyright (a prerequisite under U.S. law for suing).

I need to go through the actual opinion still, so I'm just relying on what others have said at this point -- and what sort of crazy judge issues a 350 page opinion for a fairly simple infringement case â½ --but I'm very concerned about the third factor analysis.

The fair use statute merely requires that courts consider the amount and substantiality of the use in determining if it is fair. As you say, there are no numbers in the statute; depending on the circumstances, this factor can come out on the favor of the infringer even if all of the work is used. Any attempt to add guidance in the form of a magic percentage will only come at the cost of flexibility. The latter is what's really important to fair use, though, as it is meant to cover all manner of unforeseen but fair uses. It is not just for academics.

Much worse, though, is that the court seems to find that the other factors all weigh strongly in favor of the defendant: the use is scholarly, it is of factual material, it has no material impact on the value or market for the works. Fair use isn't a matter of tallying up factors and giving the win to whoever has the most. The analysis is just supposed to help determine if the use is fair; courts can consider other evidence too, and can weight factors unevenly, or do basically anything else if it helps to decide the issue.

Even if the court finds that sometimes the third factor goes to plaintiffs, it is very strange that it should be enough for the use to not be fair. I would have thought for sure that it would be fair regardless, given the other factors favoring the defendant. Indeed, look at the Betamax case: fair use time shifting (not all time shifting is fair use, mind) loses on the first three factors, and only succeeds on the fourth, and arguably might not even do that do much in today's market, as compared with 1984's. Space shifting of music from CD to mp3 loaded on a handheld player likewise fails on most factors, yet was still fair use in the Diamond case.

I'm concerned that the court misunderstood and misapplied fair use here. The defendants really ought to consider appealing the portion of the case pertaining to the works they were found not to have fairly used.

Much worse, though, is that the court seems to find that the other factors all weigh strongly in favor of the defendant: the use is scholarly, it is of factual material, it has no material impact on the value or market for the works. Fair use isn't a matter of tallying up factors and giving the win to whoever has the most. The analysis is just supposed to help determine if the use is fair; courts can consider other evidence too, and can weight factors unevenly, or do basically anything else if it helps to decide the issue.

This is/. so I only read the summary, but what disturbs me is the judge's determination that the copyright holder could have made money and whether the university prevented it by using the copyrighted material. While copyright law allows for that determination (see 17 CFR 107), simply offering a copyrighted work for money should not effectively (and automatically) block fair use. I wonder whether this sets a precedent for this.

What the judge said was slightly different to the summary's take on it. Because the publishers were not offering an excerpt mechanism where a student could obtain the excerpts of the book, and when a professor assigns only one chapter or less out of a book, a student is unlikely to buy the book as a whole, the act of the university providing the excerpt did not financial affect the market in a substantial way and that factor falls into the fair use side.

"Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three."

The 10% figure comes from a discussion of the legislative history of the 1976 Copyright Act, specifically a related House Report called the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals." Interestingly, in her 3d use analysis section she notes

10% by page count or some percentage of one chapter of a book (IIRC it's 25% but it has been a while), whichever is lesser, being "fair use" has been placed on copyright information notices in British University libraries since at least the late 1980s, maybe earlier. Oxford and Cambridge have no excuse for not knowing what their own libraries are instructing, so I've little sympathy for any copyright claim that ran foul of fair use law.

10% by page count of a work fewer than 10 chapters, or up to one full chapter for a work with 10 or more chapters. Does this still hold if presses start deliberately putting out books with a ton of really short chapters?

Contrary to popular opinion here on Slashdot, judges generally aren't stupid. They also generally hate being screwed with. If it was obvious that a publisher was trying to abuse the rule for works with more than 10 chapters, it's highly likely that a judge would simply refuse to apply that rule.

What is a "reserve" in this context? It's clearly being used as a technical term, but I'm not a librarian and I can't find a library-specific definition in the OED, Merriam-Webster, or a couple of other dictionaries.

When I was an undergrad, library reserves usually consisted of hard copy materials that the professor used to supplement the required items. It might be a different textbook, some notes that he had put together over the years, old tests, or any other similar materials. There were usually only one or two of these items so they were pretty tightly controlled by the library (kept behind the desk, check-out time very limited, can't leave the library, etc).

Step 1: Print a book. Charge $N.Step 2: Quietly print each chapter, section, or other reasonable section as a stand-alone work. Charge much more than 50% of $N for each.Step 3: Wait for professors to grant access to 9% or less of the book you printed in step 1.Step 4: See if, in doing so, they are allowing access to more than 10% of any work you published in step 2.Step 5: If they did, sue for each violation separately.Step 6: Profit.

It's not that simple. Yes, we can publish technical reports on our university websites for free, however the peer-reviewed, open access journals (PLoS, BMC, etc.) charge a ~$1,000 fee per article. The impact factors are high, you get a creative commons license and anyone can read your work, but it's not free.

write their own textbooks. Several of my comp-sci profs, and some other profs that are colleagues of my husband, write their own textbooks. They are then allowed to give students free access to their own locally hosted version, or the students can pay the blood money to the publisher (a used copy of my database textbook went for $120) if they so desire - since they know the professor gets a chunk of change from that sale.

Not all professors have the time or the skills needed to write a book, although de

I had a wonderful organic chemistry professor who required the use of his own textbook. He believed his book was the best, but recognized the conflict of interest, which he resolved by giving the royalty payments as a scholarship to the highest scoring male and female students at the end of the course.

We all respected him for that...but we'd have taken a free electronic copy instead any day, I think.